In light of Trump’s victory, Gorsuch’s confirmation, and another 3 1/2 years of the term, it’s reasonable to discuss what’s next for SCOTUS. The topic becomes a bit morbid when you’re talking about non-retirement openings that could change the Court because one study found that “the justice’s death-in-office odds are about tripled” when the sitting president is from a different party than the that of the president who appointed the justice.

Sebastian & I were curious about the chances of an unplanned opening on the SCOTUS (aka not a retirement) and realized that family history can yield some important clues to the health of descendants. This post isn’t meant to indicate we’re wishing any negative health to sitting justices, it’s just an interesting intersection of law and genealogy. Here’s a look at the oldest Justices on the Court right now.

Ruth Bader Ginsburg
Much has been discussed about her health since she was diagnosed with one of the deadliest cancers a few years ago. However, it was caught early and things seem to be fine with her. Regardless, she is the oldest member of the SCOTUS at 84.

I actually can’t trace Ruth’s family back very far because her father was an immigrant and her mother was the daughter of immigrants. What makes it worse is that she’s from New York which is generally a nightmare for records. (There’s a reason that Reclaim the Records has had to sue them the most.) However, I have learned that Ruth may well have a fine collections of furs in her closet since her family was big in the fur business. I’d love if she’d flaunt them.

Regardless of the challenges, Ruth has far surpassed the average age I’ve been able to confirm with any confidence of her direct ancestors – 61.5. That number is largely so low because her mother died very young of cancer. Once you factor in collateral relatives such as aunts/uncles, the average age jumps up to 79.38.

Needless to say, it’s understandably why some on the left are upset that she didn’t retire under Obama. However, if she takes after a couple of uncles, then she’s got another ~3 years to meet their lifespan, and that’s enough to get into another administration should Trump not win another term should he run again. In fact, given better healthcare, it’s possible she could last through 2 terms of Trump if he can pull off a win in 2020.

Anthony Kennedy
As the next oldest member of the Court, Anthony Kennedy also has a strong recent immigrant background that makes it a little harder to trace his family tree. However, he’s the first one I found that has any line going back to the Revolution. (I don’t think that’s required or anything, but it’s just interesting.)

Anthony Kennedy is turning 81 years old this summer. The average lifespan of his direct ancestors is only 69.4 years. Factoring in those indirect relatives in reasonably close generations drops that average to 62.3 years.

It’s fair to consider that Kennedy may not want to pass on the bench. If he doesn’t want to do that, then he probably would want to retire soon. Based on his family history, he is rather lucky to have these extra years. (Granted, I don’t know the causes of death for his family, so it could well be that medical advances would have easily extended their lifetimes.)

Stephen Breyer
The third in line based on age is Stephen Breyer who will turn 79 this summer. What I can research of his tree doesn’t go back very far since his maternal grandparents were the immigrants on that branch and all great grandparents on the paternal side made the trek to America.

Direct ancestors and indirect lines come out to the same average – 73.1 years. In that regard, family history would indicate that maybe Obama’s term may have been a better time to retire if he wanted to confidently keep his seat in liberal hands.

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I’ll do further research on the younger justices soon. And, based on suggestions at the bar this weekend, I may also expand this to study the family histories of any other potential nominees. (Watch, this will result in judges having to submit a family tree to be considered for SCOTUS!)

14 Responses to “The Supreme Family Tree”

It troubles me that legislating from the bench has become such a fixture of our U.S. system, that “Who will be the next SCOTUS appointee?” has become — what’s the right word, a fetish? — to the level of analyzing the probability of SCOTUS Justices dying during the period when a faction will get to appoint the replacement.

I just wish that such appointments were assurances of anything at all with regard to firearms rights. I would hazard that whatever issues motivate those appointments, gun rights are in dead last place as motivators for whoever influences those appointments, and the best we can count on is that gun rights usually correlate with the other things on “conservative” laundry list. But as I’ve pointed out perhaps too often before, with Robert Bork, the correlation just wasn’t there.

While you are doing genetics, have you looked into the family of the man you’re counting on for appointing replacements? His father lived to 93, but a lot of the rest of his family appear to have checked out early; and he himself has put on a huge amount of weight in the last year, and often sounds somewhat breathless when speaking. That isn’t meant to indicate I’m wishing any negative health to the Head Appointer, it’s just another interesting intersection of law and genealogy. ;-)

If something happened to him, we know the exact process of replacement and exactly who will fill those shoes. Pence, Ryan, Hatch, Tillerson, Mnuchin, and so on.

Plus, as history has shown us (and that’s why we have such strong Secret Service rules for those around him), there’s a bigger risk for human attacks on presidents than SCOTUS justices, and that’s something genealogy doesn’t impact.

“If something happened to him, we know the exact process of replacement…”

First let me stipulate I’m just being argumentative, but. . .

What we wouldn’t know is, who has the ear of each of his replacements. Pence might be pretty much into the same crowd, but we don’t really know that — because actually, other than Heritage (which I believe has just dumped DeMint?) and the Federalist Society (in the case of SCOTUS nominee suggestions) we don’t know who is telling Trump what to do. I will stand by the opinion that having little knowledge and even less ideology, he has no opinions on those things himself, sufficient to make a choice from a suggested list, without throwing darts.

So with the departure of Trump, we would likely have a different nominating commodity, perhaps different nominees, and we are back to that intersection of health and law, even if it is damped a bit.

When it comes to elections, I have mixed feelings about evaluating the health of candidates. On the one hand, I understand needing the stamina to do the job…on the other hand, there’s a lot one can do, even with health problems, and if the person is good at appointing people who will do what needs to be done, whether or not he’s available to “take charge”, I fail to see the problem.

*Particularly* because it’s impossible for most people to be in charge and alert 24/7 without hallucinating. At the very least, one typically has to sleep about a third of that time.

To further complicate things, sometimes ill people are able to endure far more than you expect, while a perfectly healthy person gets pneumonia in the first month of office and dies…so it’s a bit of a crapshoot no matter how we try to predict things.

When someone said we should be wary of a certain candidate because she gets migraines, my response was “I get migraines, too! What of it?” Similarly, when Hillary has to be put in a van, my thought isn’t so much as “can she really be President” as it is “Does she have the stamina to finish her campaign?”

Overall, though, I think it makes sense to evaluate health on one level, so that if the current Commander-in-Chief drops dead of a heart attack, it’s less likely to catch us by surprise…

And I’d like to think that Mike Pence will appoint solid conservative justices that will protect our freedoms, including the right to keep and bear arms, but meh, he’s a Republican. They seem to bat a little less than .500 when it comes to Supreme Court justices…

And it troubles me, too, that this is the result of the Supreme Court’s legislating from the bench…we shouldn’t have to worry so much about our Courts!

Health in the 80’s is an interesting thing. One fall down a few steps, a bout of pneumonia, or breaking a major bone (that would be nothing in your 60’s) is something that can be fatal in your 80s.

Did anyone predict that Scalia would die a sudden death. Life is one of those interesting things in that you know it will end, you just don’t know when or how. Ginsburg isn’t a quitter, she’s quite the fighter. I would not be looking at her to leave the court or this world without a lot of fight. Heck, she beat pancreatic cancer which has a 7% survival rate past 5 years. I would lay money on her lasting the next 4 terms and sitting on the bench at 100.

Actually, it is something previously discussed here, and entirely predictable. He didn’t die that much younger than his parents (just a month shy of 80 vs. 82 & 80), and he was a smoker, among other health issues.